May, James v. Shuttle Inc

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 20, 1997 Decided November 12, 1997

No. 96-7233

James May, et al.,

Appellants

v.

Shuttle, Inc., et al.,

Appellees

Appeal from the United States District Court

for the District of Columbia

(No. 94cv01019)

---------

Before: Silberman, Williams, and Rogers, Circuit Judges.

J U D G M E N T

This cause came to be heard on the record on appeal from

the United States District Court for the District of Columbia,

and was briefed and argued by counsel. On consideration

thereof, it is

ORDERED and ADJUDGED, by this Court, that the

judgment of the District Court appealed from in this cause is

hereby affirmed. It is

FURTHER ORDERED, by this Court, that the district

court's memorandum opinion in May v. Shuttle, Inc., No.

94cv01019 (D.D.C. Sept. 5, 1996) is hereby published as if it

were an opinion of our court. We note, however, that the

collective bargaining agreement between Trump Shuttle, Inc.

and the International Association of Machinists and Aero-

space Workers expired on December 31, 1989. Thereafter,

the only function the agreement could have performed would

have been to serve as the temporary "status quo" while the

parties pursued the "major dispute" collective bargaining

procedures of Sections 5 and 6 of the Railway Labor Act.

But for the reasons made clear by the district court, Shuttle

could have been under no obligation to engage in such

bargaining in the absence of a certified representative with

which to bargain. Therefore it is unnecessary for us to

decide whether any terms of a collective bargaining agree-

ment may survive the loss of union representation (an issue

which we previously addressed in passing). See Association

of Flight Attendants v. United Airlines, Inc., 71 F.3d 915, 918

(D.C. Cir. 1995). It is

FURTHER ORDERED, by this Court, sua sponte, that

the Clerk shall withhold issuance of the mandate herein until

seven days after disposition of any timely petition for rehear-

ing. See D.C. Cir. R. 41(a)(1) (January 1, 1994). This

instruction to the Clerk is without prejudice to the right of

any party at any time to move for expedited issuance of the

mandate for good cause shown.

Per Curiam

For the Court:

Mark J. Langer, Clerk

United States District Court

FOR THE DISTRICT OF COLUMBIA

Issued September 5, 1996

Civil Action No. 94-1019(NHJ)

James May, et al.,

Plaintiffs

v.

Shuttle, Inc., et al.,

Defendants

MEMORANDUM OPINION

Plaintiffs are eighty-six former USAir Shuttle fleet service

workers.1 The five defendants are Shuttle, Inc. ("Shuttle"),

USAir, Inc. ("USAir"), International Association of Machin-

ists and Aerospace Workers ("IAM"), Citicorp, and Citibank,

N.A. Before the Court are the motions for summary judg-

ment filed by all defendants, as well as the motion of plain-

tiffs for summary judgment on the issue of the single carrier

proceeding and the motion of nineteen of the plaintiffs

("Barone et al.") for summary judgment on certain age dis-

crimination issues. Shuttle has also filed a cross-motion for

summary judgment on the issues raised by Barone et al.

Altogether, there are seven motions for summary judgment

to be resolved at this time. The Court heard oral argument

from the parties on all seven motions on June 21, 25, and 27,

1996. Upon consideration of the motions, the supporting

__________

1 Two of the original plaintiffs, Raymond Heim and Pierre L.

Schrichte, have been voluntarily dismissed. One of the original

plaintiffs, Kenneth Wall, is now deceased and the administrator of

his estate has been substituted.

and opposing memoranda, the oral argument of counsel, and

the entire record herein, the Court concludes that it must

grant the motions of all defendants and deny the motions of

plaintiffs.

Background

Most of the plaintiffs formerly worked at Eastern Air Lines

as fleet service workers for the Eastern Shuttle. The East-

ern Shuttle offered hourly, unreserved flights between New

York and Washington, and between New York and Boston.

Plaintiffs' basic job duties included handling baggage, clean-

ing aircraft, and guiding aircraft to and from passenger gates.

Plaintiffs were represented by IAM, which had negotiated a

collective bargaining agreement with Eastern on plaintiffs'

behalf. In 1989, in the midst of a prolonged strike, Eastern

sold the Shuttle to Donald Trump. He financed the purchase

through a $380 million loan from a syndicate of twenty-two

banks, including defendant Citibank. The newly named

Trump Shuttle began operations on June 7, 1989. Trump

hired plaintiffs to staff the Trump Shuttle, and Trump Shuttle

and IAM entered into a collective bargaining agreement.

Forty-nine plaintiffs worked at LaGuardia Airport in New

York, New York ("LaGuardia"), twenty-three worked at Lo-

gan Airport in Boston, Massachusetts ("Logan"), and four-

teen worked at Washington National Airport in Arlington,

Virginia ("National").

By 1990, Trump Shuttle and Donald Trump were experi-

encing serious financial difficulties. Trump Shuttle never

made a profit, in part because of the large debt incurred by

Trump to purchase and upgrade the Shuttle. By September

1990, the Trump loans were in default and the banks sought

to restructure the debt. The banks decided to assume owner-

ship of the Shuttle and began to search for a major airline to

manage it in order to avoid selling the Shuttle in the de-

pressed airline market. They decided to attempt to improve

the Shuttle's operating performance, contemplating a sale at

a later date.

After failed negotiations with Northwest Airlines, the

banks reached an agreement with USAir. The complex

management agreement with USAir provided that USAir

would manage the Shuttle for ten years, with an option to

buy. Under the agreement, USAir would be responsible for

Shuttle operations, including fares, financial record keeping,

advertising, promotions, aircraft maintenance, and labor rela-

tions. USAir would operate the Shuttle under the name

"USAir Shuttle." Shuttle would continue to operate as a

separate airline under its own operating certificates issued by

the Department of Transportation ("DOT") and the Federal

Aviation Administration ("FAA") to allow the airline to be

sold if USAir decided not to exercise its option to buy the

Shuttle. On April 7, 1992, Trump Shuttle merged into a

newly created corporation, Shuttle, Inc., which became the

corporate successor of Trump Shuttle. On April 12, 1992, the

USAir management agreement closing occurred.

The DOT and FAA certificates required the Shuttle to

maintain responsibility for its own flight operations (including

pilots and flight attendants), but did not require Shuttle and

USAir to separate the ground service employees. USAir

planned to maintain separate groups of flight personnel but to

integrate the ground service employees of USAir and Shuttle,

including the fleet service workers, and treat them as a single

workforce. IAM had demanded that USAir agree to inte-

grate the ground service employees before IAM would ap-

prove the USAir management agreement. Without the ap-

proval of IAM, it appears that USAir could not have entered

into the management agreement. The large group of fleet

service workers at USAir (there were more than 8,000 USAir

fleet service workers and 135 Shuttle fleet service workers)

was not represented by a union.

In order to integrate the two groups of employees, USAir,

IAM, and Shuttle had to resolve numerous issues, including

union representation. USAir and IAM agreed to resolve

representation questions by requesting the National Media-

tion Board ("NMB") to issue a ruling that, for purposes of

representation under the Railway Labor Act ("RLA"), USAir

and Shuttle were a "single carrier." On April 2, 1992, USAir

filed a petition with the NMB seeking single carrier status.

On May 12, 1992, IAM joined USAir's petition.

Both the United Steelworkers of America and IAM peti-

tioned to represent the fleet service workers. On August 10,

1992, the NMB ruled that USAir and Shuttle constituted a

single carrier for purposes of union representation, and an

election was held to decide which union, if any, would repre-

sent the combined group of fleet service workers. When the

votes were counted, the NMB announced that less than a

majority of the fleet service workers had voted for union

representation. Accordingly, the result of the election was

that the combined group of fleet service workers would not be

represented by a union.

After the election, the fleet service workers at Shuttle were

no longer treated as if they were represented by a union.

Union dues were no longer deducted from their paychecks

after the election. The IAM notified plaintiffs by letter dated

August 31, 1992, that they were no longer represented by the

union. Eventually, the Shuttle fleet service was not integrat-

ed with USAir, in part because of difficulties resolving senior-

ity disputes.

In March 1993, after the NMB certified the election result,

Shuttle changed several conditions of plaintiffs' employment,

including extending the work hours and limiting overtime

pay. Also in March 1993, Shuttle furloughed thirty individu-

als in the fleet service group--twenty-two at LaGuardia, five

at Logan, and three at National. Ten of those individuals are

plaintiffs here. The decision to furlough those fleet service

workers was made by Terry V. Hallcom, President and CEO

of Shuttle, based on his conclusions that he could cut costs

and replace substandard work by using an outside contractor.

Shuttle contracted with Hudson General Corporation to per-

form the work. In November 1993, eighty-eight individuals

in the fleet service group were furloughed or elected volun-

tary retirement in lieu of furlough--forty-three at LaGuardia,

twenty-four at Logan, and twenty-one at National. Seventy-

three of those individuals are plaintiffs here.2 At that time,

__________

2 The remaining three plaintiffs were furloughed on the follow-

ing dates: John P. Luti (Logan)--September 22, 1992; Harold

Young (Logan)--September 22, 1992; and Lance J. Riddick (La-

Guardia)--July 3, 1993.

Shuttle subcontracted all fleet service work to Hudson Gener-

al. Hallcom reached the decision to subcontract the remain-

ing fleet service workers after determining that approximate-

ly $2 million a year could be saved by subcontracting the

work. Shuttle had no control over the selection of employees

by Hudson General.

Furloughing the fleet service workers was part of Shuttle's

cost cutting strategy in its attempt to make the airline

profitable and recover Trump's debt. From April 12, 1992, to

August 31, 1995, the total number of Shuttle employees was

reduced from 972 to 553.

Discussion

There are eighteen counts in plaintiffs' complaint. Plain-

tiffs bring their federal statutory claims pursuant to the

Employee Retirement Income Security Act ("ERISA"), 29

U.S.C. ss 1001-1461 (1994), the Age Discrimination in Em-

ployment Act ("ADEA"), 29 U.S.C. ss 621-34 (1994), the

Worker Adjustment and Retraining Notification Act

("WARN"), 29 U.S.C. ss 2101-09 (1994), and the Railway

Labor Act ("RLA"), 45 U.S.C. ss 151-88 (1994). Plaintiffs

also bring state law claims against all defendants and a claim

against the IAM for breach of the duty of fair representation.

The Court will first address the claims against USAir and

Shuttle (parts I-VI, below), and will then address the remain-

ing defendants separately (parts VII-VIII, below).

I.ERISA, 29 U.S.C. ss 1001-1461 (1994), Counts 9-13

Section 510 of ERISA guarantees that no employee will be

terminated where the purpose of the discharge is the interfer-

ence with the employee's pension rights. 29 U.S.C. s 1140

(1994). Plaintiffs claim that defendants violated ERISA when

defendants furloughed plaintiffs without allowing them to

work up to age sixty-five (Count 9); when USAir did not offer

plaintiffs the same benefits it offered to non-Shuttle employ-

ees (Count 10); when defendants furloughed plaintiffs be-

cause defendants did not want to pay for greater health care

benefits as plaintiffs got older (Count 11); when defendants

furloughed plaintiffs because they did not want to assume the

increasingly greater risk that plaintiffs would suffer a long

term disability (Count 12); and when defendants furloughed

plaintiffs to keep plaintiffs from accruing further benefits

under the 401(k) retirement plan (Count 13).

This Circuit has recently noted that a "corporate organiza-

tion change," such as the decision to sell a subsidiary, is

generally not the type of action that is prohibited by ERISA.

Andes v. Ford Motor Co., 70 F.3d 1332, 1336 (D.C. Cir. 1995).

Because plaintiffs were furloughed as part of a reduction in

force, and the entire fleet service group was eliminated and

replaced with an outside contractor, the Court considers their

furloughs to be a "corporate organizational change." Accord-

ingly, plaintiffs must show specific evidence of unlawful moti-

vation in order to avoid having summary judgment entered

against them.

Even if the furloughs are not considered a corporate orga-

nizational change, but are to be treated as the discharges of

individual employees, plaintiffs must still pass a high hurdle

to prove that this case should go to trial. Using the classic

Burdine framework, Texas Dep't of Community Affairs v.

Burdine, 450 U.S. 248 (1981), the Court must determine if

plaintiffs have established a prima facie case: (1) prohibited

employer conduct; (2) taken for the purpose of interfering (3)

with the attainment of any right to which the employee may

become entitled. Berger v. Edgewater Steel Co., 911 F.2d

911, 922 (3d Cir. 1990), cert. denied, 111 S. Ct. 1310 (1991). If

plaintiffs establish a prima facie case, then defendants must

articulate a legitimate, nondiscriminatory reason for their

actions. If defendants meet that burden, then plaintiffs must

prove that the proffered reason is pretextual. McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973).

Defendants have presented evidence showing that the moti-

vation behind the furloughs and outsourcing of the fleet

service work was to save money. Hallcom Aff. WW 16-22. In

his affidavit, Terry Hallcom stated that Trump Shuttle never

made a profit and by early 1990 was in dire financial straits

because of the large debt incurred to purchase and upgrade

the Shuttle. Hallcom Aff. p 7. By late September 1991,

Trump Shuttle was nearly unable to generate sufficient reve-

nues to pay its operating costs. Hallcom Aff. p 9. After the

banks took over and USAir entered the management agree-

ment, the Shuttle began to cut costs and improve operations

to enable it to become economically self-sustaining. Hallcom

Aff. p 9. In 1992, the Shuttle increased its cost cutting

measures, including job force reductions in all classifica-

tions--management, pilots, fleet service, mechanics, and flight

attendants. Hallcom Aff. p 16. From April 12, 1992, to

August 31, 1995, Shuttle reduced its number of employees

from 972 to 553, as well as reducing the number of aircraft

and backup flight management, renegotiating vendor and

service contracts, and changing operations and maintenance

procedures. Id. In March 1993, Shuttle outsourced the

overnight cleaning workers in order to cut costs and get

higher quality service. Hallcom Aff. WW 18-20. Pleased with

the savings in money and the improvement in services, Hall-

com decided to outsource the remaining fleet service work to

Hudson General for a cost that was 50% less than the

Shuttle's existing cost for the work. Hallcom Aff. p 22.

According to Hallcom, since 1992 the Shuttle has saved more

than $21 million a year as a result of these cost cutting

measures, which equals a 25% reduction in total operating

expenses. Hallcom Aff. p 25. In 1989, the Shuttle lost over

$66 million; in 1994, the Shuttle generated a small profit and

is presently an economically self-sustaining business. Id.

Hallcom states, "Shuttle's reason for discharging Plaintiffs

was economic necessity. The furloughs were effectuated by a

company in financial distress and were but one part of a

massive cost reduction program applied to every facet of the

Shuttle's operation in an attempt to reduce costs sufficiently

to allow the Shuttle to survive." Hallcom Aff. p 26. Because

the decision to furlough plaintiffs was motivated by the desire

to cut costs and save the airline, defendants claim that there

was no unlawful intent to deprive plaintiffs of pension bene-

fits.

In response to defendants' evidence that the motivation for

the furloughs was to cut costs, plaintiffs complain about

documents they allegedly did not receive in discovery. Plain-

tiffs claim, without any citations to the record, that they did

not receive notice of changes to the pension plan in 1991 and

that such changes were not reported to the Department of

Labor. Plaintiffs testified in their depositions that Gordon

Linkon and Terry Hallcom of Shuttle, as well as plaintiffs'

manager Joita McGlynn, told them that no changes would be

made when USAir first took over the management of the

Shuttle. Pls.' Exs. 45-49. Plaintiffs also testified that repre-

sentatives of USAir stated that Shuttle fleet service workers

would be integrated with USAir fleet service workers with

their full seniority. Pls.' Exs. 52-53, 55, 59. Plaintiffs submit

a memorandum from Hallcom to "All Employees," dated

March 6, 1992, (five months before the combined fleet service

workers voted against union representation) stating that

"[e]ffective day one [of USAir's management of Shuttle] there

will be no changes. Any changes that may occur will be done

systematically as we begin to get established as the USAir

Shuttle." Pls.' Ex. 69. Plaintiffs submit evidence that the

Shuttle's pensions generally were "underfunded" based on

actuarial calculations of projected benefits versus projected

assets. Pls.' Exs. 70-72.

Plaintiffs also cite to the affidavit and deposition testimony

of E. Patricia Evers, former Director of Administration at the

Shuttle. Evers testified that Hallcom referred to the Shuttle

work force as an "old and aging work force." Evers Dep. at

195. She testified that Hallcom talked with her about the

cost of the pension plan and was concerned that the annual

contributions Shuttle had to make to the plan based on the

actuarial tables was too high. Id. at 159-60; 171. She

testified that Hallcom was concerned about the amount of

money Shuttle had to pay to the pension plan for the time

that employees had worked at Eastern Airlines. Id. at 173-

74. She testified that, prior to the decision to furlough the

fleet service workers, Hallcom instructed the Shuttle's actuar-

ies to compute the cost savings to the Shuttle under different

scenarios of the fleet service workers' pension plan, such as if

the plan were "frozen." Id. at 186-94. She also testified that

she was not involved in the decision to furlough plaintiffs and

did not discuss the decision with Hallcom, who made the

decision. Evers Dep. at 79, 153-59. Hallcom did not tell her

why the fleet service workers were furloughed.

In response to Shuttle's interrogatory, "Do you believe

that Shuttle ever acted with a motive to deprive you of any

retirement, health or other benefit associated with your em-

ployment? If so, identify every statement, fact or document

that supports your belief," every plaintiff uniformly answered,

inter alia, "a 'USAir Shuttle spokesman' advised People

Magazine, that I was laid off because the Shuttle wanted 'an

optimized cost-efficient operation'," and "President Hallcom

advised People Magazine that I was laid off because 'the

Shuttle management needed to cut jobs to cut costs'," and

"President Hallcom informed Crain's New York Business in

January 1994, that since November 1993 Shuttle has been

paying off interest and principal on its outstanding debt to

Citicorp and Citibank. The cost 'savings' that allowed Shut-

tle Inc. to pay the bank resulted from my layoff." Pls.'

Answers to Interrog. 10. Plaintiffs also testified in their

depositions that they believed they were furloughed to cut the

costs of their salaries, benefits, health plans, and pension

plans. See, e.g., DiSpigno Dep. at 105.

Under Andes v. Ford Motor Co., 70 F.3d 1332, 1338 (D.C.

Cir. 1995), in a case like this one, "the plaintiffs can satisfy

s 510 only by showing that some ERISA-related characteris-

tic special to the unit (such as its having a clearly above-

average proportion of employees with pension rights about to

vest) was essential to the firm's selecting the unit for closure

or sale." The evidence shows that Shuttle was in dire

financial straits and, since 1992, has undergone dramatic cost

cutting measures, including reducing its number of employees

by 419 persons--over 40% of the workforce. It is hard to

imagine, and plaintiffs have failed to show, that defendants

targeted these eighty-six persons to furlough because of their

pension costs. The problems that Shuttle was facing were

much larger than plaintiffs' pension costs--for example, the

fact that Shuttle lost over $66 million in 1989 and still had

tremendous debts to repay. Although the fleet service work-

ers were an "aging" group of employees and Hallcom was

concerned about the cost of the contributions that Shuttle was

making to their pensions, such evidence is not enough to show

a specific discriminatory intent. Plaintiffs must show more

than that Shuttle furloughed plaintiffs to save money. As the

Fourth Circuit explained:

[Plaintiff] tries to save his claim by citing statements that

[defendant] sought to meet its "financial need" by termi-

nating him, and that financial need necessarily includes

pension costs. [Plaintiff's] suggestion that [defendant]

acted illegally because it acted to save money proves too

much. Under that reasoning, any actions by an employ-

er that result in savings would be suspect. It is obvious

that benefit costs make up a large amount of the costs of

an employee to a company, and that pension rights are a

substantial component of benefit costs, but these undeni-

able propositions are not sufficient standing alone to

prove the requisite intent by the path of pretext.

Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231, 239

(4th Cir. 1991).

With respect to plaintiffs' furloughs, the undisputed evi-

dence shows that Shuttle furloughed plaintiffs in order to cut

costs and save the company. Plaintiffs have presented no

evidence to show that Shuttle was motivated by any other

factor. Because plaintiffs cannot show a specific intent to

discriminate, they have failed to establish a prima facie case.

Even if they had established a prima facie case, their claim

would fail because they did not show that Shuttle's legitimate,

nondiscriminatory reason for the furloughs was a pretext.

With respect to plaintiffs' claims that USAir did not offer

plaintiffs the same benefits as non-Shuttle USAir employees,

the Court notes that the planned integration of Shuttle fleet

service workers into the USAir work force never took place.

According to Hallcom, the integration plans failed because of

the difficulties encountered by the IAM in resolving an intra-

union dispute from attempting to combine the senior Shuttle

mechanics into the resistant USAir mechanic work force and

the parallel issue presented by the fleet service integration.

Hallcom Aff. p 14. Simply because defendants intended to

integrate the workers, and the integration plans failed, does

not give rise to a claim under ERISA. Plaintiffs have no

claims to USAir pension benefits because they were never

members of a USAir pension plan.

With respect to plaintiffs' factually unsupported claims that

Shuttle violated ERISA by failing to disclose certain pension

plans to plaintiffs and the Department of Labor, plaintiffs cite

Varity Corp. v. Howe, 116 S. Ct. 1065 (1996). Varity does not

apply to the present case, however, because Varity was not

an ERISA s 510 case and all five ERISA counts in plaintiffs'

complaint come under s 510. Because plaintiffs have failed

to provide any evidentiary support for this claim, and have

not brought a count in their second amended complaint

alleging any failure of Shuttle to disclose the pension plan to

plaintiffs or the Department of Labor, the Court will reject

these claims. The Court will grant the motions of USAir and

Shuttle for summary judgment on the ERISA counts.

II.ADEA, 29 U.S.C. ss 621-34 (1994), Counts 16, 17, 18

The Court of Appeals for this Circuit has stated:

To make out a prima facie case of age discrimination ...

a plaintiff must demonstrate facts sufficient to create a

reasonable inference that age discrimination was "a de-

termining factor" in the employment decision. Such an

inference is created if the plaintiff shows that he (1)

belongs to the statutorily protected age group (40-70),

(2) was qualified for the position, (3) was not hired, and

(4) was disadvantaged in favor of a younger person.

Once a prima facie case has been established, the em-

ployer has the burden of producing evidence tending to

show that the applicant was denied employment for a

legitimate, nondiscriminatory reason. If the employer

does so, and if his evidence is credible, the plaintiff must

show by a preponderance of the evidence that the em-

ployer's asserted legitimate reason is merely pretextu-

al.... The plaintiff, who at all times retains the burden

of persuasion, must then show by a preponderance of the

evidence that age was "a determining factor" in the

employer's decision.

Cuddy v. Carmen, 694 F.2d 853, 856-58 (D.C. Cir. 1982)

(citations omitted). The Supreme Court has clarified that

there is no disparate treatment under the ADEA when the

factor motivating the employer is some feature other than the

employee's age. Hazen Paper Co. v. Biggins, 507 U.S. 604

(1993). Plaintiffs must show that age was a factor in the

decision to furlough them. The Burdine framework dis-

cussed above applies to ADEA cases.

Some of the plaintiffs were not forty years old at the time

of the furloughs. The ADEA provides that one must be at

least forty years old to bring an ADEA claim. 29 U.S.C.

s 631(a); see also O'Connor v. Consolidated Coin Caterers

Corp., 116 S. Ct. 1307, 1310 (1996) (noting that the ADEA

"limits the protected class to those who are 40 or older").

Plaintiffs contend that employees who were not yet forty

years old when they were furloughed should be allowed to

maintain ADEA claims because they were associated with the

aging group. Plaintiffs have absolutely no legal support for

this assertion. The Court rejects their attempt to bring

ADEA claims for employees who were under forty years of

age and will grant defendants' motion to dismiss their claims

for failure to meet the first element of the prima facie case.

With respect to the plaintiffs who were at least forty years

old at the time of the furloughs, their highest hurdle in the

prima facie case is showing that younger persons were

treated more favorably than they were. Plaintiffs argue that

the average age of Hudson General's employees is younger

than the average age of Shuttle's furloughed fleet service

group. The defendants, however, had no role in deciding who

Hudson General would hire as its employees. Because defen-

dants had no control over the selection of Hudson General's

employees, the average age of Hudson General's employees is

irrelevant to this case. Plaintiffs have failed to show that

defendants treated younger persons more favorably than

plaintiffs. The Court will grant defendants' motion to dismiss

their claims for failure to meet the fourth element of the

prima facie case.

Even if plaintiffs did establish a prima facie case of age

discrimination, they would still lose their claims at the sum-

mary judgment level. Defendants have produced evidence

showing that plaintiffs were furloughed for a legitimate,

nondiscriminatory reason--to save money by outsourcing the

entire department. Plaintiffs must show by a preponderance

of the evidence that the defendants' asserted legitimate rea-

son is merely pretextual and that age was "a determining

factor" in their furloughs.

Plaintiffs rely on the following evidence to show unlawful

motivation: (1) the affidavit and deposition testimony of E.

Patricia Evers; (2) statistics showing that the majority of the

plaintiffs laid off were over the age of forty; and (3) six

documents:

(a) a memorandum labeled at the top "Shuttle, Inc.

Corporate Objectives 1992," that includes an objective to

reduce costs by developing meaningful early retirement

opportunities. Pls.' Ex. 17;

(b) A letter from Joseph P. Martinico on USAir Shuttle

stationery, dated June 5, 1992, to Thomas Reinert at

Morgan, Lewis & Bockius, stating in its entirety, "Dear

Tom: As discussed, enclosed please find both a set of

mailing labels and a listing of the USAir Shuttle Fleet

Service employees. If there is anything else I can do to

assist you, please call me at [phone number]." Pls.' Ex.

18;

(c) A newspaper article from the Washington Times,

dated November 13, 1993, in which the author wrote that

Shuttle President Terry Hallcom "said the shuttle is

essentially a 5-year-old company that has employees

with 25-year-old seniority." Pls.' Ex. 19;

(d) A memorandum from Terry Hallcom, dated Novem-

ber 5, 1993, to workers at the Shuttle regarding early

retirement, in which Hallcom announced that retirement

eligible employees had the option of selecting either an

early retirement package or the resignation offer, Pls.'

Ex. 20;

(e) An undated, unsigned document titled "Number of

Employees Reaching 'Normal' Retirement Age," listing

the number of mechanics and the number of fleet service

workers who presumably would reach retirement age in

the years 1991-2001, Pls.' Ex. 21; and

(f) A memorandum from Terry Hallcom, dated July 30,

1992, to "All Pilots," regarding the company's policies

with respect to pilots over the age of sixty.

The Court cannot discern unlawful motivation in the evi-

dence submitted by plaintiffs. E. Patricia Evers testified

that she was not involved in the decision and that Hallcom,

who was involved in the decision to furlough the fleet service

workers, did not tell her why they were furloughed. Evers

Dep. at 158-59. She stated that she "wasn't privy" to Hall-

com's plans to re-engineer the Shuttle, but that she would see

things if they were left in the copying machine sometimes.

Evers Dep. at 152. Although she stated that Hallcom used

the phrase "old and aging workforce," Evers Dep. at 195-96,

Evers could not testify if age was a factor in the decision to

furlough plaintiffs because she was not involved in the deci-

sion. Evers's testimony, at most, shows that Hallcom knew

the ages of the workers and how much it cost Shuttle to keep

them employed. Such evidence does not show unlawful moti-

vation. The remainder of plaintiffs' evidence likewise fails to

show discriminatory intent in the decision to furlough the

fleet service workers. The Court concludes that plaintiffs

have failed to create a genuine issue as to whether their

furloughs were more probably than not due to age discrimina-

tion. The Court will grant the motions of USAir and Shuttle

for summary judgment on the ADEA claims.

III.WARN, 29 U.S.C. ss 2101-09 (1994), Count 14

Plaintiffs claim that defendants violated the Worker Ad-

justment and Retraining Notification Act ("WARN") because

defendants failed to give plaintiffs sixty days advance notice

before furloughing plaintiffs and failed to offer plaintiffs an

opportunity to retrain. Plaintiffs also allege that they were

denied their WARN rights because of their union activities.

Defendants argue that plaintiffs do not have a claim under

WARN because the termination of their employment did not

constitute a "plant closing" or a "mass layoff" as defined by

the statute. Under the WARN Act, plaintiffs must show that

there was a reduction in force "of one or more facilities or

operating units within a single site of employment" which,

during a thirty day period, terminated the employment of at

least thirty-three percent of the employees and at least fifty

employees. 29 U.S.C. s 2101(a) (1994).

The reduction in force took place at three different loca-

tions--Washington National Airport, Boston's Logan Airport,

and New York's LaGuardia Airport. Each airport must be

considered separately as the three are not a "single site of

employment." The only airport that even comes close to

having a fifty person layoff is LaGuardia. Plaintiffs claim

that forty-four fleet service workers and seventeen "addition-

al" people were laid off at LaGuardia in a thirty day period.

These "additional" people were not fleet service workers, but

were flight attendants, inside ticket agents, clerks, and a staff

accountant.

Defendants claim that forty-three fleet service workers

were laid off, and that the "additional" people were not part

of the "operating unit" pursuant to WARN regulations, 20

C.F.R. s 639.3(j). Defendants also claim that the "addition-

al" people were discharged for cause or voluntarily resigned,

and thus do not come under the WARN definition of "employ-

ment loss," 29 U.S.C. s 2101(a)(6).

The Court agrees that these "additional" people cannot

count for the fifty person minimum layoff because they were

not part of the fleet service "operating unit," as required by

the statute. Moreover, plaintiffs have failed to allege that at

least thirty-three percent of the employees at LaGuardia

were terminated during the same thirty day period. The

Court will grant the motions of USAir and Shuttle for sum-

mary judgment on the WARN claim.

IV.Barone, et al.--option for retirement eligible plain-

tiffs; Cross-Motion of Shuttle

Nineteen plaintiffs (Barone et al.) were fifty-five years of

age or older when they were furloughed. These plaintiffs

claim they were eligible to retire on November 1, 1993. They

did not retire, and around November 13, 1993, they were

furloughed from their fleet service jobs. Shuttle gave these

plaintiffs a choice of either a retirement package (enhanced

medical benefits, lifetime travel, etc.) or severance pay (15

weeks of pay). Furloughed employees who were under fifty-

five years old received just the severance pay. Barone et al.

claim they were entitled to both the retirement package and

the severance pay. These plaintiffs claim that the denial of

one of the two options was made in violation of the ADEA.

They have filed a motion for summary judgment on this issue.

Shuttle has filed a cross-motion for summary judgment on

this issue. Shuttle's main argument is that the Shuttle

offered enhanced benefit options to these older employees.

Twenty-one out of the twenty-two retirement eligible employ-

ees took the retirement package, which Shuttle claims was far

preferable to the severance pay. Shuttle notes that retire-

ment eligible employees were not denied any benefits offered

to other employees, but, on the other hand, were given the

option of taking the same exact thing (furlough and severance

pay) or a better option (retirement and benefits). Shuttle

cites Hazen Paper Co. v. Biggins, 113 S. Ct. 1701 (1993), in

which the Supreme Court held that an employer does not

violate the ADEA when the factors wholly motivating the

employer's action are something other than the employee's

age, "even if the motivating factor is correlated with age, as

pension status typically is." Id. at 1706. According to defen-

dants, plaintiffs have failed to establish a prima facie case of

age discrimination.

The Court concludes that the Barone et al. plaintiffs have

failed to present evidence creating a genuine issue as to

whether Shuttle's treatment of them was more probably than

not due to age discrimination. Plaintiffs' only evidence of age

discrimination in the retirement option matter is that retire-

ment eligible employees received a choice and younger em-

ployees did not. For the reasons set forth above with respect

to the ADEA claims of all plaintiffs, and because Barone et al.

have presented no evidence that they were treated less

favorably than younger employees, the Court will deny the

motion of Barone et al. for summary judgment and grant the

cross-motion of Shuttle.

V.The Validity of the Single Carrier Proceeding

The main issue in USAir's motion for summary judgment

and plaintiffs' motion for summary judgment "on the issue of

the validity of the single carrier proceeding" is the validity of

the National Mediation Board's single carrier proceeding

under the Railway Labor Act. Plaintiffs seek a declaration

that the proceeding is void and invalid as a matter of law.

Plaintiffs claim that the single carrier proceeding before

the NMB was invalid because USAir invoked the jurisdiction

of the NMB. A decision in this Circuit, Railway Labor

Executives' Ass'n v. National Mediation Bd., 29 F.3d 655

(D.C. Cir.) (en banc), amended by 38 F.2d 1224 (1994), cert.

denied, 115 S. Ct. 1392 (1995), invalidated the regulations of

the NMB that allowed carriers to bring labor dispute claims

before the NMB in the event of a merger ("the Merger

Regulations"). According to RLEA v. NMB, the NMB can

hear a claim only if it is brought by employees or unions.

The single carrier determination in the present case was

brought at the joint request of two unions--the Steelworkers

and IAM--and the carrier. On May 12, 1992, the IAM filed a

letter with the NMB, stating, "[t]he International Association

of Machinists and Aerospace Workers, AFL-CIO, ('IAM')

joins with USAir, Inc. ('USAir') in its letter of April 2, 1992,

and requests that the Board invoke its Merger Procedures

and find that USAir and Shuttle, Inc. ('USAir Shuttle') are a

single carrier for representational purposes under the Rail-

way Labor Act." 2nd Am. Compl. Ex. 8. In RLEA v. NMB,

the carrier invoked the NMB's jurisdiction without being

joined by any union. The Court concludes that the NMB's

single carrier determination was valid because the unions

joined the petition to invoke the NMB's jurisdiction. Accord-

ingly, the Court does not have jurisdiction to review the

single carrier determination. Switchmen's Union v. Nation-

al Mediation Bd., 320 U.S. 297 (1943).

The next issue before the Court is whether, despite the loss

of union representation, plaintiffs were still protected by their

collective bargaining agreement. Plaintiffs argue that they

were. USAir argues that, under the RLA, loss of representa-

tion means loss of the collective bargaining agreement and

any obligation to maintain the status quo of the conditions

contained in the agreement. This case falls squarely within

the reasoning of International Bhd. of Teamsters v. Texas

Int'l Airlines, Inc., 717 F.2d 157 (5th Cir. 1983), in which the

Court of Appeals for the Fifth Circuit stated:

Given the Mediation Board's undeniable sole jurisdiction

over representation matters, we infer from the practical

problems of divided jurisdiction a congressional intention

to allow that agency alone to consider the post-merger

problems that arise from existing collective bargaining

agreements.... After a merger that makes the employ-

ee group hitherto represented by the Union a minority of

the craft, the question of employee representation inevi-

tably arises. When this happens, resolution of that

question is the function of the National Mediation Board.

Id. at 164. According to Texas Int'l Airlines, the issue of

whether plaintiffs were to be represented by a union was

within the exclusive, nonreviewable jurisdiction of the NMB.

Although the NMB lacks authority to enforce contracts be-

tween carriers and unions, see Chicago & N.W. Ry. v. United

Transp. Union, 402 U.S. 570 (1971), the NMB has exclusive

authority to govern "representational" disputes, including

whether a majority of the employees desire the union's

representation and whether two related carriers will be treat-

ed as one for representation purposes.

The danger that would arise if the Court were to accept

plaintiffs' proposition that their Trump Shuttle-IAM collec-

tive bargaining agreement remained in existence after the

fleet service group voted against union representation is that

the Court would, in effect, recognize the union as the fleet

service group's bargaining agent. A collective bargaining

agreement "is not merely a contract negotiated by an agent

on behalf of a group of principals, thereafter to be performed

and enforced entirely by the principals. It recognizes the

Union as the employee's bargaining agent. It delegates to

the Union the right to enforce its provisions as the agent of

the employees. By its terms the agreement is a collective

bargaining agreement not a series of individual employment

contracts. If the employees designate a new collective bar-

gaining representative, it succeeds to the status of the former

representative without alteration in the contract terms. [cita-

tions] The agreement cannot survive, however, without some

bargaining agent." Id. at 163-64.

The Court of Appeals for this Circuit has discussed Texas

Int'l Airlines in several cases, including Association of Flight

Attendants v. Delta Air Lines, Inc., 879 F.2d 906, 912-13

(D.C. Cir. 1989), cert. denied, 494 U.S. 1065 (1990), and

Association of Flight Attendants v. USAir, Inc., 24 F.3d

1432, 1440 (D.C. Cir. 1994). In Association of Flight Attend-

ants v. United Airlines, Inc., 71 F.3d 915, 918 (D.C. Cir.

1995), in the context of discussing the Texas Int'l Airlines

decision, the Court of Appeals noted that, "of course, if the

NMB were to subsequently determine that the affected em-

ployees fell within a much broader class or craft in which the

union did not enjoy majority support, the contractual relation-

ship would necessarily terminate." At least some of the

plaintiffs understood that if the combined USAir/Shuttle fleet

service group voted against union representation, they would

lose their union and their contract:

Question:What was your concern about no union win-

ning the election?

Answer: Without a union, we have no contract.

DiSpigno Dep. at 186.

The Court concludes that, when plaintiffs were combined

with the much larger group of USAir fleet service workers

and the combined vote resulted in no union representation,

plaintiffs' representation and collective bargaining agreement

necessarily terminated. For the reasons set forth above and

in the memoranda and argument of USAir, the Court will

grant USAir's motion for summary judgment on this issue,

which was joined by Shuttle, and deny the motion of plain-

tiffs.

Plaintiffs also bring an "anti-union animus" claim under the

RLA, s 2, Fourth. Section 2, Fourth prohibits carrier inter-

ference with employee efforts to organize unions. The lead-

ing s 2, Fourth case in this Circuit is Air Line Pilots Ass'n v.

Eastern Air Lines, 863 F.2d 891 (D.C. Cir. 1988), cert.

dismissed, 501 U.S. 1283 (1991). According to that case, an

employer is limited to taking only measures that it would

have taken in the absence of any anti-union animus. Id. at

902. "[U]nions should not be able to immunize their mem-

bers from market forces merely by engaging in conduct

virtually certain to provoke anti-union feeling." Id. at 902.

In the present case, plaintiffs cite to a comment made by

Terry Hallcom, Shuttle President and a former Eastern pilot,

to plaintiff James May about how Hallcom might still be

flying Eastern planes if the union and Eastern had been able

to reach a deal. May, who also used to work for Eastern,

agreed that Hallcom's statement about the Eastern situation

was "quite possibl[y]" true. Plaintiffs also cite to a memoran-

dum written by Hallcom to a labor relations employee at

USAir in which Hallcom advocated a hard bargaining position

with the unions.

Hallcom's comment about Eastern does not show anti-union

animus. His comment also does not show a causal connection

between the alleged animus and plaintiffs' furloughs. The

memorandum does not show anti-union animus, either. It

merely shows Hallcom's position on bargaining with unions.

Hard bargaining, by itself, does not show anti-union animus.

Defendants have presented ample evidence that plaintiffs

were furloughed to save money; plaintiffs have presented no

evidence that their furloughs were caused by anti-union ani-

mus. Accordingly, the Court will grant summary judgment

for defendants on this issue.

VI.State Law Claims

Plaintiffs bring numerous state law claims. The Court

rejects all of plaintiffs' state law claims because such claims

are clearly preempted by the Railway Labor Act or ERISA.

See 29 U.S.C. s 1144(1) ("the provisions of this subchapter

... shall supersede any and all State laws insofar as they

may now or hereafter relate to any employee benefit plan

described in section 1003(a) of this title"); Ingersoll-Rand

Co. v. McClendon, 498 U.S. 133 (1990).

VII.Motion of IAM

IAM is a defendant in Counts Seven (state law fraud),

Fifteen (breach of duty of fair representation), and Sixteen

(Age Discrimination in Employment Act). IAM contends

that Count Fifteen was filed after the limitation period and

must be dismissed as untimely. IAM argues that the state

law claim is preempted by the federal claim and must also be

dismissed. Finally, IAM claims that it is entitled to summary

judgment on the ADEA claim because there is no evidence

that IAM caused or attempted to cause the furloughs.

A. Breach of Duty of Fair Representation (Count 15)

Technically, the Railway Labor Act has no "duty of fair

representation" provision. In Steele v. Louisville & Nash-

ville R. Co., 323 U.S. 192, 199 (1944), however, as part of a

series of cases involving alleged racial discrimination by un-

ions, the Supreme Court recognized that the Railway Labor

Act imposes a duty on the union to represent all members of

the bargaining unit fairly. Under this doctrine, the union has

a duty "to serve the interests of all members without hostility

or discrimination toward any, to exercise its discretion with

complete good faith and honesty, and to avoid arbitrary

conduct." Vaca v. Sipes, 386 U.S. 171, 177 (1967) (quoted in

Air Line Pilots Ass'n, Int'l v. O'Neill, 499 U.S. 65, 76 (1991)).

IAM argues that this action must be dismissed against it

because plaintiffs filed this complaint outside the six month

limitation period. Plaintiffs do not challenge that the appro-

priate limitation period is six months. That time period

comes from DelCostello v. International Bhd. of Teamsters,

462 U.S. 151, 155 (1983), in which the Supreme Court bor-

rowed the six month period from s 10(b) of the National

Labor Relations Act. The Fourth Circuit applied DelCostello

to a case under the Railway Labor Act in Triplett v. Brother-

hood of Ry., Airline & S.S. Clerks, 801 F.2d 700, 702 (4th Cir.

1986).

The limitation period began to run when plaintiffs knew or

should have been aware of their injury. IAM argues that the

period began to run after the election, when plaintiffs lost

their union representation. The undisputed facts show the

union had no contact with plaintiffs after August 11, 1992,

other than telling plaintiffs that it no longer represented

them. Plaintiffs were furloughed in March and November

1993, and filed this lawsuit in May 1994.

Plaintiffs' only argument for tolling the limitation period is

that they believed the union would continue to represent

them after the vote to reject union representation. Although

it was clear that they were no longer represented by a

union--IAM sent them a letter telling them it no longer

represented them; plaintiffs stopped paying union dues to

IAM; plaintiffs applied for withdrawal cards and withdrew

from the union, see, e.g., Pls.' Answers to IAM's Interrog. 2--

plaintiffs maintain that IAM told them that it would continue

to negotiate their integration with USAir regardless of the

election results. Plaintiffs claim that it was not until the

second group of them was furloughed on November 13, 1993,

that they knew, or should have known, that the IAM was not

going to negotiate the integration on their behalf. In support

of this proposition, plaintiffs cite the following facts:

(1) A letter dated April 23, 1992, from IAM General Vice

President John F. Peterpaul, which was posted at plain-

tiffs' work stations. Peterpaul describes the background

of the single carrier proceeding (which had not yet been

decided) and then states that "[w]hen the National Medi-

ation Board approves the petition for the single employ-

er, this will then put us in a posture to sit down and

negotiate a full integration agreement with USAir con-

taining the necessary wages, hours and working condi-

tions." In the final paragraph, Peterpaul tells the recipi-

ent of the letter, "[y]ou should also advise the Shuttle

members that, no matter what the final determination of

the NMB, because USAir will control the Shuttle opera-

tion and USAir is within the jurisdiction of District

Lodge 141, in order to better service our members, the

Shuttle contract and our members will be transferred

into District 141 as soon as it is appropriate." Pls.' Ex.

134.

(2) An undated letter to Lou Schroeder from "A Group

of Flying Tiger Members" thanking Schroeder and the

rest of IAM District 141 for their help in an arbitration.

The Flying Tiger Members also thank IAM for allowing

Airline Coordinator Bill Scheri to testify for them. They

conclude, "We all hope that when the times and condi-

tions are most appropriate, the IAM will make a strong

effort to reorganize FedEx, and bring us under the

banner of the IAM." Pls.' Ex. 136.

(3) An undated "Opinion and Award" in Seniority Inte-

gration in the matter of the arbitration between Federal

Express Corporation, Federal Express Mechanics, and

former Flying Tiger Mechanics, Stock Clerks and Relat-

ed Employees. George Kavros, Assistant General Chair-

man, IAM District Lodge 141, appeared for the Flying

Tiger Line Seniority Committee. The opinion notes the

testimony of Bill Scheri.

(4) The deposition testimony of Pierre Schrichte, a for-

mer plaintiff in this action who has been voluntarily

dismissed, that he believed IAM "would do for us what

they did for the brother members at Flying Tiger."

Schrichte Dep. at 52.

The Court concludes that this evidence fails to raise a

genuine issue of material fact about whether IAM told plain-

tiffs that it would continue to represent them even after it

was voted out. The April 23, 1992, letter does not discuss

what IAM would do if it lost the election, and nowhere states

that IAM would continue to negotiate for plaintiffs if it were

no longer their bargaining representative. The evidence

about Flying Tiger and the testimony of a voluntarily dis-

missed plaintiff that he thought IAM would do for him what it

did for Flying Tiger simply does not show that IAM misled

plaintiffs into thinking that IAM would continue to negotiate

on plaintiffs' behalf after it lost the election. The undisputed

evidence shows that plaintiffs knew, shortly after the election,

that IAM no longer represented them. Having failed to

present any evidence that IAM told plaintiffs it would contin-

ue to negotiate on their behalf, the Court finds as a matter of

law that plaintiffs' cause of action with respect to IAM

accrued as of the date they knew or should have known that

they were no longer represented by IAM, August 1992, or, at

the very latest, when the first group of plaintiffs was fur-

loughed in March 1993. Plaintiffs did not file this lawsuit

until May 9, 1994, well after the six month limitation period.

Accordingly, the Court will grant the motion of IAM for

summary judgment on Count 15.

B. State Law Fraud & Deceit (Count 7)

IAM argues that the state claim of fraud and deceit is

preempted by the federal duty of fair representation under

Vaca v. Sipes, 386 U.S. 171, 177 & 188-95 (1967). In a

Fourth Circuit case with issues similar to the present case,

the Court of Appeals held that the federal duty of fair

representation preempts identical state law claims. See Nel-

lis v. Air Line Pilots Ass'n, 15 F.3d 50, 51 (4th Cir.), cert.

denied, 115 S. Ct. 56 (1994). At oral argument, when asked

to articulate how the state law claim differs from the federal

claim, counsel for plaintiffs stated: "Because lying isn't con-

doned under a collective bargaining agreement. And if you

do that, you are subject to state rules concerning it. That's

the short answer, Your Honor." Vol. III, Tr. of Mot. Hrg.,

June 27, 1996, at 86. The Court finds no merit in plaintiffs'

argument and agrees with IAM that plaintiffs' state law claim

is the same as the federal claim. Accordingly, the state law

claim must be dismissed.

C. Age Discrimination (Count 16)

IAM argues that it is entitled to summary judgment on

plaintiffs' age discrimination claim because there is no evi-

dence that the union caused or attempted to cause plaintiffs'

furloughs. From August 1992, including through the March

and November 1993 furloughs, plaintiffs were not represented

by IAM. The ADEA makes it "unlawful for a labor organiza-

tion ... to cause or attempt to cause an employer to discrimi-

nate against an individual in violation of this section." 29

U.S.C. s 623(c). Because there is no evidence of record that

IAM had anything to do with plaintiffs' furloughs, the Court

will grant IAM's motion for summary judgment on Count 16.

D. Conspiracy

In its opposition memorandum, plaintiffs appear to bring

conspiracy claims against IAM that are not in the complaint.

Plaintiffs allege that the union acted against plaintiffs with

anti-union animus because IAM thought plaintiffs were

"scabs." Section 2, Fourth of the Railway Labor Act, dis-

cussed above, applies only to carriers. There is no cause of

action for a union that allegedly acted with anti-union animus.

The Court also notes that plaintiffs have failed to present any

evidence that IAM was part of a conspiracy against plaintiffs.

VIII.Motion of Citibank and Citicorp

Citicorp is a bank holding company. Citibank is a lender

and agent for a consortium of twenty-two financial institu-

tions which lent approximately $380 million to Donald Trump

to purchase Shuttle. Citibank is a shareholder of Shuttle.

Plaintiffs claim that John S. Reed, the Chief Operating Offi-

cer of Citicorp, and Wendy Silverstein, a vice president of

Citibank and one of the directors of Shuttle, were personally

involved in the decision to furlough plaintiffs.

The record overwhelmingly shows that Citicorp and Citi-

bank had no involvement in plaintiffs' furloughs. Plaintiffs'

vast conspiracy theory has failed to materialize after discov-

ery. See Vol. III, Tr. of Mot. Hrg., June 27, 1996, at 4-46.

Although Citibank was actively involved in restructuring

Trump's loan and creating Shuttle, Inc. in an attempt to

recover some of the money lent to Trump, it is clear that

Citibank and Citicorp had no role in managing the operations

of the Shuttle. The evidence shows that Citicorp and Citi-

bank are not "carriers" under the RLA, had no involvement

in petitioning the NMB for the single carrier determination,

were not plaintiffs' "employer," had no involvement in plain-

tiffs' employee benefit plan, and had no involvement in the

decision to furlough plaintiffs. Because plaintiffs have failed

to raise any genuine issue of material fact for trial with

respect to Citicorp and Citibank's involvement in their em-

ployment or their furloughs, the Court will grant the motion

of Citicorp and Citibank for summary judgment on all counts.

Conclusion

For the reasons set forth above, the Court will grant the

motions for summary judgment of all defendants and deny

the motions of plaintiffs. An appropriate Order will issue.

____________________________________

NORMA HOLLOWAY JOHNSON

UNITED STATES DISTRICT JUDGE